Warren v. State , 127 Tex. Crim. 71 ( 1934 )

I am in entire accord with the conclusions announced by my brother Lattimore that the "action of the trial court in his refusal to submit to the jury the question of granting appellant a suspended sentence was entirely proper." The opinion is based upon the proposition that the pardon in question was conditional. There are expressions in the opinion which would support the inference that if the pardon had been full or unconditional the action of the trial court would have been erroneous in declining to submit the issue of suspended sentence. I am not willing to permit the matter to pass and be tacitly bound by any such inference. If an accused has been once convicted of a felony, my mind refuses to accept the fallacy that because a pardon, however full and complete it may be, has been granted, that said accused upon a subsequent prosecution for a felony may comply with the statute (article 776, C. C. P.) and support a plea for suspended sentence by an affidavit that he has never before been convicted of a felony. Such an affidavit would be an untruth on its face under such circumstances, and appears to me to be wholly at variance with the purpose and spirit of the suspended sentence law.

The contention of appellant is a direct corollary of the holding by the majority opinion in Scrivnor v. State,113 Tex. Crim. 194, 20 S.W.2d 416. More than ever I question the soundness of that opinion, and here again register my dissent thereto, and acquit myself of any purpose to be bound by the inferences which may be drawn from the opinion in the present case. The opinion of my brethren in Scrivnor's case followed one line of authorities, the other line (and the one which appeals to me as sound) is stated in Ruling Case Law, vol. 20, p. 559, sec. 44, under Pardons, as follows: "The contrary view that a pardon of a convict does not prevent his conviction from being considered to enhance the penalty of an offense subsequently committed obtains in some jurisdictions, and in a considerable number of states the statutes expressly provide for the enhanced punishment for a crime committed after conviction of a prior offense and a discharge therefrom by pardon or otherwise. This rule is based on the principle that the true ground upon which statutes providing for a heavier penalty for second offenders are sustained is that the punishment is awarded for the second offense only, and that in determining the amount or nature of the penalty to be inflicted, the legislature may require the courts to take into consideration the perisistence of the defendant in his criminal course."

With the reservations heretofore stated I concur in the opinion of affirmance.